Monday, 31 October 2016

Lawyers for Uber mad

In no way are Uber drivers really employees - they would pass every criteria for IR35, except that they have to work almost solely for Uber.

Plus the whole case is made on hours available (this is how you can get to such low pay of £5 per hour). But of course cabbies are never on the clock for the whole time they are at work.

Really, DLA Piper, who led the case for Uber should be thoroughly ashamed of themselves. They have given wind to a whole raft of hand-wringing happy stories in the Guardian about the fight for workers rights. All of it a waste of time as half-competent lawyers will easily win the next round of appeal at the Supreme Court.

Also, whilst I am riled, what is all this shit about a 'gig-economy' as if this is something new. What, for all of say 2000 years, are fruit-pickers? Other Cabbies? Chuggers?

The whole world is full of people who try to make ends meet by doing basically odd-jobs on a regular basis. The whole Lefty concept that this is some new type of capitalist overlordship is crazy; more so given it is written by journalists who exist in just such a space; perhaps it is their sympathy and angst at their own situation that makes them try to come up with such contorted story-telling?

20 comments:

Anonymous
said...

It's the Marxist/Puritan ideal of work for work's sake, happy workers working a regular set of shifts (enough hours but not too many) for paternalistic employers from school to a nice early retirement.

It is beyond naive to fight Uber on this, Uber want to be and will very likely succeed in being the Ebay of transportation, they have no desire to provide the transport themselves only to connect customers to providers. This is like beating Federer in the first game when he's about to destroy you in the next 3 sets.

p.s. I will get myself a regular username soon so you can easily spot my bremoaning comments

I read a moan on LinkedIn about the new Airbnb diversity contract. The author said he approved of the sentiment but not being forced to accept the new terms. None of this would be a problem if there were competitors to Airbnb/Uber.

Hmmm. To be self-employed there has to be a contract between the driver and a passenger for every trip. But Uber does not give the surname or address of the passenger to the driver, nor does Uber give the driver's surname to the passenger. So the self-employment fiction is dependent on millions of contracts between people who only know each others christian names. Nor could the driver negotiate his own price for the trip as Uber does not tell the driver the destination at the time of the booking. Hmmm2.

This is just one aspect of what seems a very strong case against the Uber self-employment fiction.

... having successfully gone through an IR35 investigation myself, have to say I doubt an Uber driver would pass. A key test is who has management and control of the work, and who pays when things go wrong. Looking at an Uber driver:

- Uber sets the exact driving route for each trip, and fines drivers if the passenger complains and the driver did not follow the route

- Uber excludes the driver from knowledge of the destination until the passenger is picked up (so negotiation on price away from the Uber-set price is impractical)

- Uber excludes the driver from the surname and telephone number of the passenger, and contractually obliges the driver not to attempt to contact the passenger after the trip

- Uber specifies what brands and age of car are acceptable

- Uber accepts the risks of bad or fraudulent payments by the passenger, the driver is still paid by Uber

- Uber makes rebates and penalties on the driver, sometimes without explicitly informing the driver

A handy partial summary of most of the tribunal reasons is in para 92 (page 29) of the decision.

NB the tribunal did not determine the driver was an "employee", but just a "worker". I hadn't realised there was a difference, but there is!.

Uber is the agent. When you book a normal minicab you don't know the name of the driver, not sure what the point is there.

Uber drivers are free to work when they like and are not exclusive to Uber. They do not have to accept a request.

Also not sure about that they do not know what the job is before they accept. When I have used Uber I have always entered my destination into the app, and the driver has always known it when picking me up. I will defer to the more knowledgeable on that point.

I don't know about the legal definitions, but in my experience an employer expects a certain of time dedicated by the employee to the employer's business, and takes a risk on whether there is enough consumer demand for the employment to be justified. Uber take no such risk. Uber effectively tender out the demand and set the prices accordingly to whether the demand can be met.

Overall, this is something that will get sorted out over time. The worst possible outcome to my mind would be to get bogged down in French-style arguments about protecting existing cabbies and pretend arguments about drivers' conditions. If driving an Uber is so bloody awful and underpaid then ultimately people won't do it and demand will not be satisfied, prices will go up and so on. Y'know basic market stuff. Applies just as much to Uber drivers as it does to junior doctors.

Uber drivers only know the destination when they reach the pick-up point.

I like Uber, but their contracts very much have a whiff of "cake and eat it", which is really what they got nailed on. When your contract quite purposefully has all the turns and twists of a rollercoaster, then, yes, a court will provide you with your very own Alton Towers 'Smiler' moment.

And as a contractor myself, I agree with rwendland, they wouldn't pass the IR35 test. I'm not sure how Uber will extract themselves from this without changing their terms.

Uber doesn't help itself either, it's typically high handed of the New Digital Clerisy, edicts sent down, because people love to be told they're going to be earning less now.

I use Uber a lot, and chat to their drivers, and whilst they enjoy the freedom, they're not happy at their terms changing on a whim.

@CU - as to where the gig-economy came from... Well, between the internet and changing working routines, the middle class and up have now encountered it, so now Something Must Be Done lest their darling offspring end up carting the neighbours about...

Addison Lee does the same thing, so does Hailo. Ok, maybe lawyers can get medieval on all this and demand changes but I fail to see what uber is really doing above and beyond using its brand to demand drivers go cheaper if they are with Uber; which is entirely optional on the part of the drivers.

I am with BE here, the market would not put up with that, there is already competition in this market, the drivers can start anew if they please.

When we sit with the accountants each year a key point about who is snd who can no longer be self employed is the tools of work.

If you have to attend a place of work and the tools required are provided by someone, then you cannot be self employed.

Uber drivers place of work is something they own themselves. The tools - fuel, repairs, insurance, garage get, cleaning toilet facilities, personal break areas etc etc are all provided by the driver. Except for the app, it's self employed all the way.

At the moment there is a large imbalance in the economies. My Hermes the courier is almost entirely in the uber model. Royal Mail has few self employed and cannot match the low prices of Hermes. But Royal Mail are paying tens of thousands of workers sickness and holiday pay. Pension payments must be made. They Are paying a fortune in employers national insurance payments, and have to cover all the legal and h&s requirements , over the norm, because of their strong Union.

Chances are, unless the government's wake up, that the uber model of "sort your own life out" will become he norm as it is far, far more profitable.

The uber drivers place of work is the Uber app. If they are not there, they do not get work.

Uber is a minicab company and as long as it follows the same rules as all the other minicab companies, there will be no problem.

I do not think the uber model will really work as it is only profitable because a lot of costs have been passed to the worker.As those costs in Europe are to some extent passed on to the state, for a limited time Uber and its like will benefit, but once the govt wakes up this temporary advantage will go.